Robinson v. United States

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-CM-1220
WAYNE D. ROBINSON, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CMD-7497-18)
(Hon. Maurice Ross, Trial Judge)
(Submitted October 1, 2020 Decided November 10, 2021)
Stephen W. Riddell was on the brief for appellant.
Timothy J. Shea, United States Attorney at the time the brief was filed, with
whom Elizabeth Trosman, John P. Mannarino, Eric S. Nguyen, and Daniel G.
Randolph, Assistant United States Attorneys, were on the brief for appellee.
Before GLICKMAN and EASTERLY, Associate Judges, and RUIZ, Senior Judge.
2
EASTERLY, Associate Judge: Wayne Robinson 1 was convicted of attempted
voyeurism 2 after he attempted to take a photograph under a woman’s skirt while they
were both riding an escalator in Union Station. The District’s voyeurism statute,
among other things, makes it unlawful “for a person to intentionally capture an
image of a private area of an individual”—in pertinent part defined to include the
“undergarment-clad genitals, pubic area, anus or buttocks”—“under circumstances
in which the individual has a reasonable expectation of privacy, without the
individual’s express and informed consent.” D.C. Code § 22-3531(a)(2), (d). Mr.
Robinson asserts the evidence was legally insufficient to support his conviction
because women have no expectation of privacy when they are in public spaces;
rather, “[a] woman in a public place assumes the risk that other members of the
public may view her from almost any angle or from any vantage point.” This
proposition is as absurd as it is offensive, and we clarify in this opinion that it has
no foundation in the District’s voyeurism statute.
Certainly some provisions of our voyeurism statute are concerned with
expectations of privacy in private locations such as bathrooms and changing rooms.
1
There is some indication in the record that Mr. Robinson’s “true” surname
is actually “Robertson”; but because he uses the surname “Robinson” in his notice
of appeal and brief to this court, we do the same.
2
See D.C. Code §§ 22-3531(d), 22-1803 (2021 Supp.).
3
See D.C. Code § 22-3531(b)(1), (b)(2), (c)(1)(A), (c)(1)(B). But § 22-3531(d),
regarding “captur[ing] an image of a private area of an individual,” grounds
expectations of privacy in “circumstances.” When individuals don clothing, cover
statutorily protected private areas of their bodies, and enter into public spaces, they
choose how much of themselves to show the world and thus create a circumstance
in which they have a reasonable expectation of privacy in those covered private
areas. Absent “express and informed consent,” a person who captures an image of
those statutorily protected and clothed private areas commits a crime under D.C.
Code § 22-3531(a)(2) and (d).
I. Facts and Procedural History
For purposes of this appeal, the following facts are undisputed. One May
morning, the complainant walked over to Union Station to get a cup of coffee. At
some point, Mr. Robinson, a stranger, started to follow her. Video footage captured
him trailing her for some distance in the food court, and then, as described by the
trial court, standing “directly behind her on the elevator going up” to the main level
of the building. As they rode the escalator, he “crouched forward, extended his hand
towards the bottom of [her] skirt, and smoothly pulled his hand back after a few
moments.” The complainant “both felt [Mr. Robinson’s] phone against her knee and
4
saw it angled so he could take a photograph up her skirt.” She confronted Mr.
Robinson, accused him of taking a photograph under her skirt, and alerted some
nearby Amtrak police officers of the incident. Although Mr. Robinson told the
police that he had taken the photograph by accident, “he . . . [also] admit[ted to them]
that he takes pictures of other women to make his girlfriend jealous.” With Mr.
Robinson’s consent, the police searched his phone and recovered a photo showing
complainant’s legs. 3
In connection with this conduct, the government charged Mr. Robinson with
attempted voyeurism. At his bench trial, the government presented testimony from
the complainant and the Amtrak sergeant who searched Mr. Robinson’s phone, as
well as video footage of Mr. Robinson and the photograph recovered from his phone.
Mr. Robinson testified in his own defense. The trial court did not credit Mr.
Robinson’s testimony that he accidentally photographed the complainant, and
concluded that the government had proved Mr. Robinson’s guilt. This timely appeal
followed.
3
The photograph looks down towards complainant’s feet, not up her skirt; the
government argued that Mr. Robinson had mistakenly taken the photo in the wrong
direction.
5
II. Analysis
Although Mr. Robinson now concedes he tried to “upskirt” the complainant,
i.e., take a picture of a private area within the meaning of the District’s voyeurism
statute under the hem of her skirt or dress, he argues that the evidence supporting his
attempted voyeurism conviction is nevertheless legally insufficient because the
government failed to prove an essential actus reus element of the crime, 4 specifically
that he attempted to upskirt the complainant “under circumstances in which [she
had] a reasonable expectation of privacy.” D.C. Code § 22-3531(d) (making it
“unlawful for a person to intentionally capture an image of a private area of an
individual,[5] under circumstances in which the individual has a reasonable
expectation of privacy, without the individual’s express and informed consent”).
Mr. Robinson asserts that the meaning of this phrase is a question of first impression,
and that we must interpret it to exclude photographing women in public places.
4
See Carrell v. United States, 165 A.3d 314, 320 n. 13 (D.C. 2017) (adopting
the Model Penal Code classifications for actus reus elements: conduct,
circumstances, and results).
5
D.C. Code § 22-3531(a)(2) (defining “private areas” as “the naked or
undergarment-clad genitals, pubic area, anus, or buttocks, or female breast below
the top of the areola”).
6
We review sufficiency of the evidence and embedded statutory interpretation
issues de novo. In re K.G., 178 A.3d 1213, 1219 (D.C. 2018); see also Carrell, 165
A.3d at 326. Considering the facts in the light most favorable to the verdict, we must
deem the evidence sufficient if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Miller v. United States,
209 A.3d 75, 77 (D.C. 2019) (internal quotation marks and italics omitted). We
conclude that Mr. Robinson’s argument is foreclosed by the plain language of the
voyeurism statute. See Lopez-Ramirez v. United States, 171 A.3d 169, 172 (D.C.
2017) (acknowledging the judicial aim is “to ascertain and give effect to the
legislative intent” as reflected in a statute’s text (internal quotation marks omitted)).
Mr. Robinson’s analysis focuses entirely on the expectations that people have
(or do not have) “in public”: he argues that if a woman is in a public space, like
Union Station, she has no expectation of privacy in any part of her body, whether
clothed or not. In support of this argument, he cites cases from other jurisdictions
interpreting (defunct 6) voyeurism statutes phrased in locational terms. See, e.g.,
C’Debaca v. Commonwealth, No. 2754-97-4, 1999 WL 1129851 (Va. Ct. App. Feb.
2, 1999), State v. Gilliland, No. M2008-02767-CCA-R3-CD, 2010 WL 2432014(Tenn. Crim. App. June 17, 2010), and State v. Glas, 54 P.3d 147 (Wash. 2002).
6
See infra notes 7 and 8.
7
But, unlike these statutes, 7 D.C. Code § 22-3531(d) does not look to physical
location to define expectations of privacy; instead it more broadly refers to
“circumstances in which the individual has a reasonable expectation of privacy.”
Conventional and legal dictionaries alike agree that ‘circumstance’ is not merely a
synonym for ‘place,’ but an “event,” “fact” or “condition” that accompanies another.
See Circumstance, Black's Law Dictionary (11th ed. 2019); see also Circumstance,
Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/
circumstance (last visited Sep. 1, 2021); https://perma.cc/9H3M-5SN6; cf. Glas, 54
P.3d at 151–52 (contrasting Washington state’s statute “which named the place
where this privacy is expected” with California’s statute which referred to
“circumstances in which the other person has a reasonable expectation of privacy,”
7
See Va. Code Ann. § 18.2-386.1 (West 1994) (“It shall be unlawful for any
person to videotape, photograph, or film any nonconsenting person if (i) that person
is totally nude, clad in undergarments, or in a state of undress so as to expose the
genitals, pubic area, buttocks or female breast in a restroom, dressing room, locker
room, hotel room, motel room, tanning bed, tanning booth, bedroom or other
location . . . .” (emphasis added)); see also Tenn. Code Ann. § 39-13-605 (West
2000) (“It is an offense for a person to knowingly photograph . . . an individual,
when the individual is in a place where there is a reasonable expectation of privacy
. . .”); Wash. Rev. Code Ann. § 9A.44.115 (West 1998) (“A person commits the
crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire . .
. he or she knowingly [and without consent] views, photographs, or films another
person . . . while the person being viewed . . . is in a place where he or she would
have a reasonable expectation of privacy).
8
and then “[left] the option open to” enforce the statute in “public places” (emphasis
added)). 8
Recognizing that D.C. Code § 22-3531 protects individuals based on their
“circumstances”—which may include but are not limited to location—we are
compelled to conclude that an individual in public, such as the complainant in this
case, has a reasonable expectation of privacy in those statutorily defined “private
areas” which she has clothed. Put another way, when an individual in public covers
an enumerated “private” area of their body, they create a circumstance in which they
have a reasonable expectation of privacy in that area. We are unpersuaded by Mr.
Robinson’s argument that “given the omnipresence of cell phones with photographic
capabilities,” women are on notice that they might be upskirted and thus cannot
reasonably have an expectation of privacy in any part of their body. The unpleasant
8
In the wake of Glas, the Washington State legislature amended its voyeurism
statute to incorporate the “circumstances” language used in the California and D.C.
voyeurism statutes. See Wash. Rev. Code Ann. § 9A.44.115 (West 2003); Id. (West
2017). Virginia also amended its statute to make it a crime to take a “videographic
or still image . . . by placing the lens or image-gathering component of the recording
device in a position directly beneath or between a person's legs for the purpose of
capturing an image of the person's intimate parts or undergarments.” Va. Code Ann.
§ 18.2-386.1 (West 2005). See also Tenn. Code Ann. § 39-13-605 (West 2011); id.(West 2018); id. (West 2021) (the current statute prohibiting the taking of photos
that “focus[ ] on the intimate area of the individual and would be considered
offensive or embarrassing by the individual”).
9
fact that upskirting might occur does not diminish an individual’s reasonable
expectation that it should not. See State v. Boyd, 155 P.3d 188, 193 (Wash. Ct. App.
2007) (“[when a person] dons a skirt . . . [and] climbs a flight of stairs, she may
reasonably expect that people standing beneath her may incidentally glimpse parts
of her body above the hemline . . . [but] she does not [therefore] implicitly authorize
others to attempt to view the hidden parts of her body”).
III. Conclusion
For the reasons set forth above, we conclude that the evidence that Mr.
Robinson violated D.C. Code § 22-3531(a)(1) and (d) was legally sufficient.
Accordingly, we affirm.
So ordered.